268 F.3d 46 (1st Cir.

2001)

GRACE LANGILL, Plaintiff, Appellant,

v.
VERMONT MUTUAL INSURANCE COMPANY, Defendant,
Appellee.
No. 01-1074

United States Court of Appeals For the First Circuit

Heard Oct. 1, 2001
Diceded October 18, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Dana A. Curhan, with whom William T. Kennedy was on brief, for
appellant.
John C. Skinner, with whom William O. Monahan was on brief, for
appellee.
Before Boudin, Chief Judge, Coffin, Senior Circuit Judge, and Lynch,
Circuit Judge.
COFFIN, Senior Circuit Judge.

In this Massachusetts diversity case plaintiff-appellant, Grace Langill, the

insured owner of a residential property, challenges the invocation by defendantappellee insurance company, Vermont Mutual Insurance Co., of a statutorily
required "vacancy" exclusion in plaintiff's policy, to deny coverage for fire
damage to the property. Appellant appeals from a partial summary judgment
granted to defendant prior to trial. We affirm.
Factual Background

The insured premises are a rental dwelling at 158 Mansfield Avenue (158) in

Norton, Massachusetts, some thirty-five to forty feet away from appellant's own
residence at 156 Mansfield Avenue. In February 1999, two tenants who had
lived at 158 for twelve years moved out, leaving the property in a condition
showing considerable wear and tear. Soon after their departure, appellant's
husband undertook to refurbish the house by cleaning, removing debris, filling
nail holes, painting walls, repairing several windows, and installing Venetian
blinds. During this period, doors were kept locked, utilities were maintained,
and heating oil was supplied. In the premises were Mr. Langill's tools, a step
ladder, two chairs, a mattress, frame and box spring, a radio and an ash tray.

It was Mr. Langill's practice to spend one to two hours a day working at 158
starting at 11:00 a.m. or noon. A longer time would place undue strain on his
arm. He would sometimes visit the premises at night to smoke or meet with
friends; he had coffee there with a friend six or seven times. On one night, after
an argument with appellant, he had stayed all night.

On May 4, 1999, Mr. Langill was at 158 from 10:30 a.m. until approximately
noon. He spent the rest of the day at his house, save a visit to a store to buy a
newspaper. At 2:00 a.m. on May 5, he was awakened by appellant and saw "a
big orange ball" of fire at 158. By this time the fire was well advanced on one
wall. The Norton Fire Investigator concluded that the fire was an arson.

Appellant's "Dwelling Fire Policy" included, as required by Massachusetts

General Laws ch. 175, 99, the following exclusionary clause:

27. Vacancy. Unless otherwise provided in writing, we will not be liable for
loss caused by fire or lightning occurring while a described building is vacant,
whether intended for occupancy by owner or tenant, beyond a period of sixty
consecutive days for residential purposes of three units or less, and thirty
consecutive days for all other residential purposes.
Discussion

The question presented to us and to the district court is whether under

Massachusetts law, the undisputed facts depict a dwelling that had been, at the
time of the fire, "vacant" for more than sixty consecutive days. This is a matter
of law and our review is de novo. We also are bound by the Massachusetts rule
that "[b]ecause the language of the standard policy is prescribed by statute . . . ,
the rule of construction resolving ambiguities in a policy against the insurer is
inapplicable. . . . Instead, we must ascertain the fair meaning of the language
used, as applied to the subject matter." Bilodeau v. Lumbermens Mut. Cas. Co.,

392 Mass. 537, 541, 467 N.E.2d 137, 140 (1984) (internal citations and
quotations omitted).
8

Two Massachusetts cases have been called to our attention. The earlier is Will
Realty Corp. v. Transportation Ins. Co., 22 Mass. App. Ct. 918, 492 N.E.2d
372 (1986). After a tenant was evicted and left a rundown house, the windows
were boarded and the only activity occurred on two days when workmen
removed from the house doors, windows and sinks. A fire destroyed the
building several months later. In reversing a ruling that the property had not
been "vacant," the court said, "the policy provision reflects the commonplace
observation that the risk of casualty is higher when premises remain
unattended. . . . [P]remises may be vacant despite sporadic entry." 22 Mass.
App. Ct. at 919, 492 N.E.2d at 373.

A more recent case is helpful, not so much in its precise holding, as in its
discussion of policy underlying the "vacancy" exclusion. See Aguiar v.
Generali Assicurazioni Ins. Co., 47 Mass. App. Ct. 687, 715 N.E.2d 1046
(1999). A restaurant, which had closed for the season on Labor Day, was
destroyed by fire approximately two months later.1 Before the fire, the
restaurant had been unoccupied and utilities had been shut off. In affirming the
trial court's ruling that the property had been vacant for the required period, the
appeals court "illuminated why an insurer would be concerned about an
unoccupied building" by explaining that arsonists had attempted to destroy the
building several times in the months before they ultimately succeeded. 47
Mass. App. Ct. at 689, 715 N.E.2d at 1047. Moreover, in discussing the
insured's argument that he reasonably expected to be covered under the
insurance policy, the court commented:

10

[w]hen reasonable expectations analysis comes into play, it is more likely to do

so when the task is to interpret an ambiguous provision rather than an
unambiguous one whose meaning, as in this case, no one disputes. . . . They
could not reasonably have expected that leaving the building vacant did not
alter the underwriting condition.

11

47 Mass. App. Ct. at 691, 715 N.E.2d at 1048.

12

Neither case neatly covers the facts in the case at bar. In both cases no activity
was going on in the premises. In Aguiar, at least, the premises were not devoid
of contents. It is clear, however, that the court was not equating "vacant" with
"abandonment," as do some jurisdictions. See, e.g., Jerry v. Kentucky Cent. Ins.
Co., 836 S.W.2d 812, 815 (Tex. App. 1992) ("entire abandonment"). It is also

clear that having the building "attended" and "occupied" is the central theme.
13

The question remains whether this requirement can be satisfied by regular visits
and activities, although of relatively brief nature, by someone other than a
resident of the building. We are helped by reflecting on the reasons underlying
vacancy exclusions. In considering the vacancy exclusion of a policy insuring a
warehouse, the Fourth Circuit explained:

14

When a building is not in use, it is more likely that potential fire hazards will
remain undiscovered or unremedied. Chances are also greater that a fire in a
vacant building will burn for a longer period and cause greater damage before
being detected.

15

Catalina Enter. v. Hartford Fire Ins. Co., 67 F.3d 63, 66 (4th Cir. 1993). Surely,
these considerations are even more applicable to one insuring a dwelling.

16

When we review the undisputed facts of this case, in light of these policy
concerns, we can readily see their lack of fit. That is, the approximation to an
inhabited abode is not measurably advanced by the motley and sparse inventory
of chairs, mattress, and step ladder. Nor does the midday hour or so of work
activity convey the appearance of residential living. And random evening visits
hardly provide the appearance of somebody being at home or effective antivandal protection. The fact is that none of the activities of Mr. Langill or others
changed the fact that at the critical and likely times for vandalism and arson,
there was no one in the house to discourage, see, or hear marauders, or to hear
the activation of smoke detectors.

17

A recent New York case seems both apposite and persuasive. In Lamoureux v.
New York Cent. Mut. Fire Ins. Co., 244 A.D.2d 645, 663 N.Y.S.2d 914 (N.Y.
App. Div. 1997), the insured building was a one-family residence located
adjacent to and behind plaintiff's residence. The premises were destroyed by
fire three months after the plaintiff's tenant had moved out. The policy excluded
coverage for loss if the building were vacant over 60 consecutive days.
Plaintiff's principal challenge to a finding of vacancy was that he was
personally renovating the house and was inside the building every day for a
couple of hours. The court reversed the trial court's denial of the insurer's
motion for summary judgment, "[g]iving the word vacant its plain and ordinary
meaning. . . ." 244 A.D.2d at 646, 663 N.Y.S.2d at 915. It also ruled that
because "plaintiff himself was never an inhabitant of the premises, the fact that
he frequented the premises for the purpose of renovation is not germane to the
issue of vacancy." Id.

18

We think the Massachusetts courts would similarly rule on the record before us.
When we consider the nature of the hazard sought to be guarded against, the
sustained presence of a resident, particularly in the hours of darkness, appears
logically as the critical factor where the premises are a dwelling. Of course, this
also assumes the presence of furnishings and amenities "minimally necessary
for human habitation." American Mut. Fire Ins. Co. v. Durrence, 872 F.2d 378,
379 (11th Cir. 1989).

19

We recognize, as this case illustrates, that there is a wide continuum between

residency and absolute absence of human presence from the premises. And we
do not intend to foreclose the possibility of a set of facts not involving a
resident but so paralleling the conditions of residency as to avoid application of
the exclusion clause. But we think that in general the multi-factor approach
urged by appellant is inconsistent with Massachusetts law. What seems
preeminent in this insurance context, for both insurer and insured, is
predictability. To the extent that a multi-factor approach is suggested, such as
including the presence or absence of tenants, the habitability or absence thereof,
the number, nature, duration, and regularity of activities and visits by nonresidents, and the proximity of the insured site to the residence, any
predictability is fatally compromised.

20

Appellant has vigorously invoked dictionary definitions and case law to serve
his purpose. As might be suspected, where a host of things can be spoken of as
"vacant," from rooms and houses to stores, positions, and expressions,
definitions are legion. Appellant has relied on those that stress a space being
"devoid of contents." Webster's New World Dictionary, 1968 ed., p. 1606. This
is a perfectly good definition but it has been impliedly rejected by Aquiar.
Moreover, reference to absence of contents would be more relevant if one were
considering whether a warehouse were vacant. The absence of that for which
the premises were intended to be used would seem to be the proper object of
inquiry. Appellee's choice of another of Webster's definitions seems more of a
fit: "untenanted; not in use, as a room or a house." Id. We note as well that the
language of the provision, "whether intended for occupancy by owner or
tenant," directs us to give no special consideration to purpose of the building as
one to rented rather than one to be used by appellant.

21

Appellant's reliance on cases illustrates the hazard of focusing on text to the

exclusion of context. For example, cases are cited for the proposition that
efforts to rehabilitate property preclude a finding of vacancy. See Knight v.
United States Fid. & Guar. Co., 123 Ga. App. 833, 182 S.E.2d 693 (1971);
Limbaugh v. Columbia Ins. Co. of N.Y., 368 S.W.2d 921 (Mo. Ct. App. 1963).
Knight involved installing new equipment, painting, and making ready a

service station and restaurant for reopening and Limbaugh similar activities to
ready a recreation hall and package liquor store for opening. In both cases there
were policy exclusions if the premises were "unoccupied" for sixty days.
Knight relied on the reasoning of Limbaugh, in which the court said:
22

The word "occupancy" itself, as used in insurance policies, refers to the

presence of persons within the building. This is particularly true as it relates to
dwelling houses. They are expected to be places of human habitation where
people live and dine and sleep. This cannot be said of a recreation hall and
package liquor store, for the nature of the occupancy does not warrant the
conclusion.

23

Limbaugh, 368 S.W.2d at 924. The court accordingly held that cleaning and
repainting the interior of the liquor store "would be an activity consistent with
its occupation as such." Id. at 925.

24

Not only does the meaning of "vacancy" depend on the type of premises
involved, but also the type of insurance policy. Appellant seeks comfort from
Ellmex Constr. Co., Inc. v. Republic Ins. Co., 202 N.J. Super. 195, 494 A.2d
339 (N.J. Super. Ct. App. Div. 1985), which held that the presence in a model
home of realtors for four days every week constituted sufficient presence to
defeat a thirty day vacancy exclusion clause. But the court noted that the policy
involved was a "builder's risk" policy, which should not be interpreted as are
policies insuring ordinary homeowners. 202 N.J. Super. at 204, 494 A.2d at
344. The latter policies, observed the court, "may, and usually do, require the
insured dwelling to be occupied as a place of abode." 202 N.J. Super. at 203-04,
494 A.2d at 343. It consequently felt free to depart from this standard and,
resolving ambiguity against the insurer, held that defendant had not required
that the premises be "occupied" twenty-four hours per day.

25

Finally, it is important to distinguish cases according wide elasticity to the word

"occupancy," after finding the word ambiguous and construing the term in
favor of the insured. See Smith v. Lumbermen's Mut. Ins. Co., 101 Mich. App.
78, 300 N.W.2d 457 (1981); Drummond v. Hartford Fire Ins. Co., 343 S.W.2d
84 (Mo. Ct. App. 1960). In Smith, the court held that where the insurer knew
that a dwelling was under a contract of sale, a temporary vacancy pending
arrival of the new resident-owner was "not within the vacancy clause, absent a
clear expression of intent in the insurance policy." 101 Mich. App. at 86, 300
N.W.2d at 460. Likewise, in Drummond the court, relying on early precedent,
held that the presence of a caretaker one day and night each week during the
specified vacancy period constituted "possessio pedis" and was sufficient. 343
S.W.2d at 87. Suffice it to say that neither case would be considered relevant in

interpreting the mandatory vacancy provision under Massachusetts law.

26

Affirmed.

Notes:
1

At the time, Mass. Gen. Laws ch. 175, 99 provided for a vacancy period of
only thirty days before the vacancy exclusion could be invoked.